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Monday, September 5, 2016

Developing Duties (with Dissents)

This case is a big development in Vermont tort and mental health law. You haven’t heard from me for a few weeks because I’ve been muddling my way through it. And I am not a smart man. If you think the summary is lengthy, you should see the opinion. Any mental-health practitioner, or lawyer involved in mental-health law or civil litigation touching on these issues, should probably sit down with a cup of coffee (or whatever drink one prefers; I’m not trying to be a coffee supremacist here even though coffee is the best) and work one’s way through it.

Michael Kuligoski was attacked and seriously injured by a former Brattleboro Retreat patient, E.R., who was being treated by Northeast Kingdom Human Services (NKHS). The Kuligoskis sued the Retreat and NKHS for “failure to warn of E.R.’s danger to others, failure to train E.R.'s parents in handling E.R., failure to treat, improper release, and negligent undertaking.” The defendants moved to dismiss that complaint and the superior court granted the motion, concluding that the Kuligoskis had failed to state a claim.

In a mixed-bag decision, the SCOV majority reverses on a couple claims and affirms on others. The dissents are fiery. It gets a little heated. (Sorry.)

Let’s dig into the facts, shall we? Back in the fall of 2010, E.R. was voluntarily admitted to the Psychiatric Department at Central Vermont Medical Center (CVMC) with a “psychotic disorder” after he’d made threats toward young children in his home. Based on his behavior at CVMC the examining physician tentatively diagnosed E.R. with a schizophreniform disorder.

Documentation was prepared for involuntary commitment and E.R. ended up at the Vermont State Hospital, though no involuntary-commitment proceeding was ever started. He was given anti-psychotic and anxiety medication. E.R. did not want to be at the State Hospital and said he felt unsafe there. So he was transferred to the Brattleboro Retreat. Upon discharge from the State Hospital, he was diagnosed with a schizophreniform disorder.

At the Brattleboro Retreat, another physician examined E.R. and confirmed the schizophreniform disorder diagnosis. Documentation indicated that E.R. was grossly psychotic and required an inpatient level of care. There were auditory and visual hallucinations, menacing behavior, and homicidal and suicidal ideation. He refused to take his meds.

Despite concerns about taking meds, participating in follow-up treatment, and an ability to understand his disease, E.R. was scheduled to be discharged from the Retreat. The last note indicated that one day off his meds had led to an increase in voices that E.R. was receiving violent direction from. But E.R. was discharged the same day.

It’s unclear what his parents were told, though it appears that the gist was that E.R. might have schizophrenia and was “going through a phase and would recover.”

The discharge summary again stated that E.R. was unlikely to comply with post-discharge treatment, noted that his parents believed his mental health was related to a breakup with a girlfriend or complications from mono, and that he probably had schizophrenia or at least a schizophreniform disorder.

The discharge plan involved regular visits to NKHS and daily medication to be administered by E.R.’s mom. E.R.’s mom thought E.R. was much improved after the retreat. E.R. stopped taking his meds and told mom. A physician from NKHS told mom that this was a cause for concern, but that E.R. needed to decide to take care of himself. Nobody from NKHS reached out to E.R. or met with him over the next few months.

Then one day, E.R. went with his dad to an apartment building owned by E.R.’s grandparents. Michael Kuligoski was there, working on the furnace. E.R. went to the basement and attacked Michael, causing serious injuries. The forensic psychiatrist appointed on the criminal side of things opined that E.R. “likely was in a ‘psychotic haze’ at the time of the offense, having been ‘overcome by the symptoms of his condition to the degree where he acted while in a psychotic storm.’”

Plaintiffs filed a complaint alleging seven counts: (1) negligent discharge by the Retreat; (2) failure to warn the parents by the Retreat; (3) failure to train E.R.’s parents in his care by the Retreat; (4) negligent undertaking by the Retreat; (5) failure to warn the parents by NKHS; (6) failure to treat by NKHS; and (7) negligent undertaking in its care of E.R. by NKHS. Plaintiffs maintained and emphasized all along that the common duty in each count was the “duty of reasonable care to act to avoid needless risk to the safety of third parties” based on the “special relationship” between the defendant entities and their patient, E.R.

Naturally, both defendants moved to dismiss. They both argued that they had no duty to prevent E.R. from attacking Mr. Kuligoski, “and that their alleged negligence was not the proximate cause of plaintiffs’ injuries.” The trial court agreed and granted both motions. Basically, the trial court found that Mr. Kuligoski was not an identifiable plaintiff and that defendants had no duty to control E.R. The court also found that as far as the third-party claims went, allowing them would too greatly expand the majority holding in this case, according to the trial court. As to defendants’ duty to control E.R., the trial “court emphasized Vermont’s ‘policy of keeping mentally-ill persons in the least restrictive environment possible.’”

Plaintiffs appeal. They argue that while this case (Peck) involved an identifiable victim, the holding should not be limited to only identifiable victims. The majority partially agrees. While it holds that the duty-to-treat and negligent-undertaking claims are done, the failure-to-warn claims don’t get dismissed at this stage.

The standard of review on a motion to dismiss is arguably plaintiff-friendly: the SCOV will only affirm “only if it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Facts as pleaded are assumed to be true and anything in the defense pleadings that contradicts is assumed false.

Duty is a legal question to be decided by the court. Once legal duty is established (and breach of duty), then we get into proximate cause and cause in fact. Put as simply as possible, a finding of proximate cause is a finding that the act complained of was likely to have the consequences it did—foreseeability. Cause in fact is the “but for” cause. Let’s say there’s a car crash on an icy road. The ice is probably the cause in fact because “but for” the ice, the crash wouldn’t have happened. In order to find proximate cause, one has to look at how a “reasonable person” (this is total legal fiction, by the way) would’ve acted in the defendant’s shoes. So, in our example, the reasonable person would’ve probably been more careful driving on ice. If you really want to dig into it, here’s a reminder of 1L torts for our lawyer and law student readers and an explanatory Wikipedia article for our other readers.

I’ve diverged from the opinion a bit here. Essentially, the idea is that proximate cause is usually a jury issue unless nobody can disagree on the facts. So, the majority need to do a little factual development to get there.

The majority starts with a general discussion of duty to third parties generally, and the specific duty mental health professionals have to their patients and third parties.

The majority looks at a newer Restatement section (Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012) for you nerds out there). Among other things, this section suggests that a mental health professional has a special relationship with patients and this imposes a duty of reasonable care, which can include a duty to seek involuntary commitment for a dangerous patient, and which further extends a duty to those in the community who might be harmed by the patient.

Though the SCOV has not dealt with this section before—and no other court has explicitly adopted it—the SCOV majority notes that it builds on the principles in the previous iteration and is “an evolution of duties articulated in decades of case law.” I think this means the majority likes it.

If you haven’t read this case, go do it now. It’s important. Basically, when a patient makes a credible threat, a mental health professional has a duty to warn. There’s a lengthy discussion in the opinion. The gist is that courts look at “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.”

To make a long story short, there’s a duty to warn an endangered person or the people who can reasonably be expected to notify the endangered person. But it’s not unlimited. The majority notes this case, which declined to impose a blanket duty to warn on a county that released a juvenile offender into his mother’s custody. The juvenile proceeded to murder his neighbors’ child. The California Supreme Court reasoned that the victim was not an identifiable and foreseeable victim and that warnings would’ve had little effect. The dissent argued that warning the juvenile offender’s mother would’ve maybe made her more cautious, but the SCOC dismissed that as speculative.

Back to Vermont and Peck. Here’s the easiest way I know to explain Peck. Imagine if Milton from Office Space was Peter’s patient. In that instance, Peter would have to warn someone, (probably Lumbergh) of Milton’s intention to burn the building down based on this conversation. Got it?

Grossly oversimplified, there’s a special relationship, knowledge, and a specifically identified victim and act. Add that up and what does it spell? D-U-T-Y.

With the history lesson out of the way, the majority first turns to the failure-to-warn and failure-to-train E.R.’s-parents claims against the Retreat. The majority notes that it combines these claims under the general description of “duty to warn” and considers whether separate duties are involved later. As previously noted, there’s a foreseeability split: several courts extend duty to warn only to specifically identifiable victims or a class of those in proximity or a relationship with the specifically identifiable victim; other courts extend the duty to warn to foreseeable victims and those in a particular class (like those living with the patient)n that places them in the zone of danger.

Plaintiffs and defendants view Peck differently. Plaintiffs argue that it should be construed broadly and extend a duty to warn to E.R.’s parents. Defendants argue that the holding in Peck specifies an “identifiable victim” and that the duty to warn must be limited to identifiable victims. The majority sides with plaintiffs.

The majority opines that while Peck’s reasoning included an “identifiable victim,” that was based on the facts and circumstances of the case, and that the holding is not restricted only to “identifiable victims.” In a bit of an aside, the majority notes that Peck is thirty years old and that the modern trend is more-expansive on the duty-to-warn front.

There’s the obligatory swipe at the dissent’s reasoning—noting that the so-called identifiable-victim limitation isn’t a real thing and suggesting that the dissent is way out in left field.

The majority acknowledges that there’s no duty to warn the general public, but notes that the complaint is for a failure to warn E.R.’s caretakers, here, his parents. The majority concludes there are two reasons the Retreat had a duty to warn E.R.’s parents.

First, because E.R.’s parents were taking on the role of caretakers, if the Retreat had said something like “Y’all can’t let E.R. go off his meds because . . .” that’d possibly affect how involved his parents were in ensuring he took his meds. The majority notes that there’s a reasonable inference that if E.R.’s parents hadn’t been available to take on his care, he might not have been released. The majority spills some ink on the facts of this case. The important points are that E.R. was released to parents who had no specialized training or anything, and the Retreat needed to give them enough information to do their job with some degree of safety.

Second, E.R.’s parents were within the “zone of danger” in this case. The majority notes that E.R.’s threats of violence were general but that E.R. was going to live with his parents. As such, the Retreat had a duty to warn the parents.

That brings us to the tougher question: “If defendant owed a duty to the parents and breached that duty, resulting in harm to an unidentifiable third party, is defendant liable?”

The majority looks at the physician’s duty to give the old don’t-drive-on-these-meds warnings. When the doc fails to give that warning and the patient drives and harms a third party, the doc can be held liable. By analogy, the majority reasons that this principle applies here.

On the duty to train front, the majority kicks the can down the road a bit, reasoning that it’s more appropriately described as a duty to give certain information, and that it would be “premature for us to define the exact extent of the duty when the case is still at the complaint stage.”

The same analysis applies to NKHS. “Thus,” the majority holds, “NKHS had the same duty to warn, recast above as a duty to provide particular information, as the Retreat did.”

There’s a defense lack-of-causation argument floating around, but the majority isn’t going to address that at the complaint stage.

Finally, there’s a “whole big thing” about the confidentiality of mental-health records. Defendants and amici curiae ("friends of the court") argue that the physician-patient privilege and public policy of encouraging folks to seek mental-health treatment means that a duty to inform in these types of cases is burdensome and arguably illegal.

The majority disagrees for three reasons. One, while some privilege may exist in the context of judicial proceedings, it doesn’t require defendants in this context to refuse to warn of a danger. Two, there’s a specific exemption for disclosures to the patient’s family in the statutory scheme. And third, HIPAA allows disclosure without consent when it’s necessary to prevent a threat to health or safety of a person or the public and it’s to a person or persons reasonably able to prevent or lessen the threat of harm.

Regarding such disclosure, the majority holds: “In essence, by this decision, we are imposing the mandate as a matter of tort law in circumstances where the mental health professionals and institution are authorized to disclose under HIPPA.”

And so, the majority holds that the duty to warn claims as to both the Retreat and NKHS survive the dismissal and kicks those back to the trial court.

The duty-to-protect claims don’t fare as well. The two claims against the Retreat are: “(1) that defendant negligently discharged E.R. and this discharge was the proximate cause of plaintiffs' damages; and (2) defendant undertook to render a service to E.R. necessary to protect third parties, failed to exercise due care in the performance of its undertaking, and its negligence was a proximate cause of the damages to plaintiffs.”

The Retreat, relying primarily on this case, argues that the duties don’t exist or apply here.

The SCOV digs into the case cited by the defense, which was about a person attacked on his paper route by a juvenile under SRS (what we now call DCF) supervision. In that case, the SCOV noted that there is no general duty to control a third person, even though there might be some duty to warn. The majority concludes that the same reasoning applies here, though it spends some time getting there.

The basic point—because we’re all about oversimplification here—is that recognition of a duty to control under these sort of circumstances creates a climate where everybody who might possibly hurt somebody at some point in the future ends up locked up indefinitely because mental-health-services providers live with a constant specter of lawsuits hanging over their heads if they don’t keep everyone locked up. Because plaintiffs’ position is, in the majority’s view, too broad, it elects “not to impose a duty.”

On narrower grounds, the majority rejects the negligent-undertaking claim as well. Essentially, plaintiffs would need to show that defendant’s care actually increased the risk of harm in this case, and the majority opines that that ain’t happenin’.

As far as the claims against NKHS go, the same reasoning applies—even more so with an outpatient program actually.

And so, the majority revives the failure-to-warn-and-train claims and leaves the others to wither on the vine.

Chief Justice Reiber dissents. He notes that judicial innovation must be tempered with prudence, circumspection, and restraint. In the sense that the majority “dresses its decision in the clothes of the ‘modern,’” to create new duties, he dissents.

In the Chief Justice’s view “the argument is a fiction.” Science and law have evolved, sure, but not to the extent that supports expanding “exponentially the duty owed by a mental health professional to protect third parties in the circumstances presented here.”

The dissent reads the “identifiable victim” language in Peck as limiting. Considering that the predominant legal response to such situations over the last forty years has in general been to specifically define and limit a mental-health-services provider’s duties to third parties—and to require an identifiable victim—the dissent sees the majority’s reasoning as opening a can of worms that need not be opened.

On the one hand, there’s the public interest in protection from harm posed by potentially violent mental health patients. On the other hand, there’s the sacrosanct confidentiality, the interest in ensuring treatment without fear of repercussions, and the societal effects of unnecessary hospitalization. A handful of states have gone to one extreme or the other. In some states, a duty to inform has been explicitly rejected. In others, the therapist’s duty extends to all foreseeable victims.

In Vermont, the dissent notes, public policy favors minimization of involuntary commitment. Most states, the dissent opines “have pursued an approach between these two extremes.” These states have “struck a balance among the competing concerns by recognizing a relatively narrow duty of care limited to situations where the therapist knows or should know that a patient poses a specific threat to an identified or reasonably identifiable third person.” In the dissent’s opinion, this is the route to take. The majority goes too far.

Therapists’ duties must have some identified limits. Otherwise, liability is far too broad a proposition. In the dissent’s view, a specific and immediate threat against an identified or readily identifiable victim is what gives rise to liability for nondisclosure. The majority goes far too far beyond that.

One of the biggest problems here is not that the majority “has adopted a minority position without expressly acknowledging it.” The problem, according to the dissent, is that “the majority not only expands the scope of a therapist's duty beyond the limits recognized by this Court in Peck, it creates an entirely new duty of care which plaintiffs here have labeled a duty to ‘train’ and the majority sees fit to ‘recast as a duty to provide . . . information.’”

The majority is inconsistent in the dissent’s opinion. On the one hand, it rejects a duty to involuntarily hospitalize a potentially violent patient. On the other hand, it imposes liability for failing to train caretakers. This is a broad, novel duty and has “such potentially broad consequences for mental health care providers, their patients, and the general public” that it “surely requires a more solid foundation than an allegation in a complaint.”

There’s simply no legal support for a duty to train or duty to provide information in the dissent’s reasoning. The dissent points out that an aftercare plan was created and reviewed with the parents, that medications were prescribed, and there was contact between NKHS and E.R.’s mom regarding the same.

The dissent points out that even if the plaintiffs are able to establish through experts some professional standards for “training” a patient’s caretaker, the societal implications must be considered. Look at all the defendants did, says the dissent, and consider that that didn’t prevent E.R. from committing a violent act. What extra information would have?

“Uncertainty counsels caution, for courts and clinicians alike.” What this means, in the dissent’s reasoning, is that caution is going to lead to a lot more—perhaps unwarranted—caution by mental health practitioners resulting in significant restrictions on those with mental health issues.

In essence, the dissent appears to believe it best to leave the mental health practicing to the mental health practitioners and leave the existing law intact.

As far as the majority’s “zone of danger” reasoning as to E.R.’s parents (remember that from long, long ago?), the dissent finds that “equally flawed and unpersuasive.” Zone-of-danger analysis applies to “a finite class of reasonably identifiable potential targets.” Its purpose is “to protect a slightly expanded class of reasonably identifiable potential victims.” And that simply isn’t here.

In the dissent’s view, “The majority identifies no compelling public policies to warrant the extraordinary duty it imposes on mental health care providers by today's ruling. On the contrary, settled public policy governing our treatment of the mentally ill demands precisely the opposite result.”

Justice Skoglund joins the Chief Justice’s dissent, but adds a few words of her own. In Justice Skoglund’s opinion, “The majority has created a heretofore unheard of duty based on an allegation in a complaint.” The duty to train has no legal or public-policy support. “It is illogical, potentially fatal to effective patient-therapist relationships, and places an impossibly onerous obligation on those who provide mental health care to the people of this state.”

Justice Skoglund points out that this is “an unprovoked, spontaneous act of violence directed against a stranger by an individual suffering from a severe mental illness.” In her view, the only way to prevent it would’ve been “anticipatory confinement.”

Though the majority pays lip service to precedent, it then “abruptly abandons consideration of identified victims or reasonably identifiable victims and finds a duty” where none has ever existed before. Like the Chief Justice, Justice Skoglund is at a loss as to what further “training” could’ve been offered.

Justice Skoglund distinguishes the case cited by the majority by pointing out that that was a situation where parents brought their son to a hospital, the physician more or less said the son was fine, and two days later the son attacked the father. That’s nothing like what happened here.

Logistically, this new duty is a problem too. Generalized threats are commonplace. On top of that, the new duty arguably requires educational testing of potential caretakers. How can the goal of least-restrictive placement be achieved with these kinds of restraints?

The dissent closes thusly: “Decisions to create and impose new legal duties on other learned professions have profound consequences.” Imposing a novel new duty without considering all its implications is “the essence of judicial arrogance.”

Whew. Some strong opinions there. And a lot of pages. Again, if you’re in the mental health field or your practice involves civil liability for treatment providers, this one is a must-read opinion.